Ideation, Conceptualization, Realization

Discovering the Creative Scope in Software Engineering from the Perspective of Copyright and Patent Law

Sarah Leins-Zurmuehle

• Publisher: buch & netz
• Year: 2021
• eBook ISBN: 9783038054450
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

The software industry is regarded as one of the most creative and dynamic industries in the world. At the same time, sheltering software through copyright and patent law has been a major point of contention for the past 40 years. This doctoral thesis aims to provide new insights to this discussion. Through the use of sociological methodology, it supplies the necessary basic scientific reasearch regarding how software is developed and commercialized nowadays. Based on these findings, it then legally evaluates to what extent copyright and patent law are able to reflect these structures and determines how an optimal protection scope for computer programs could look like today. This doctoral thesis on one hand offers novel insights and points of view on existing legal doctrines. It further acknowledges as well as legally qualifies some prevailing trends in the software industry, such as Scrum and continuous delivery, that have so far been largely unaddressed by copyright and patent law.

Chapter 1: Introduction

Introduction to the Research Subject

At the beginning of every theory stands an idea. It rarely arrives out of the blue, but rather is induced by a personal passion, an accidental encounter, an observation or a specific problem. I believe this statement applies to both software development and my dissertation project.

The initial triggers for my doctoral thesis were of a primarily personal nature. Several people in my close circle expressed their legal discontent with their work in the information and communication technology (ICT) sector. They explained that they would increasingly be confronted with over-contractualization when dealing with computer programs. Particularly when working with large corporations, they would more and more have to issue contractual assurances that they had not unlawfully embedded third-party intellectual property in their products. For them this compliance guarantee represented an issue that they, as small- and medium-sized enterprises, could hardly handle. Most of them had, at least once in their career, faced an infringement of their own intellectual property (IP) and had found it extremely difficult to enforce their own rights, let alone administer third-party IP. These colleagues and also other software developers and product managers stated that they were unsatisfied with the current legal situation and that their expectations as well as some core needs were not being met. Some of them went as far as claiming that the current intellectual property regime in Switzerland would discourage development and innovation in software altogether.

That statement caught my ears. If this were true, it would represent a massive locational disadvantage for Switzerland. Software has become possibly the most important market good worldwide. Not only has everyday life become almost unimaginable without ICT, but it further helps us to design our businesses effectively and increase their rates of performance. The ICT industry, combining both produced goods and supplied services, has left its mark on the world’s economies. According to market research by Gartner, Inc., in 2018 a total of USD 3.747 trillion was spent on software worldwide, with a further 1.1 per cent growth expected for 2019.^[1] The Software Alliance BSA estimated that, in 2016 alone, software contributed a sum of USD 1.07 trillion to the value-added GDP in the United States and EUR 910 billion in the European Union.^[2] These numbers indicate that the software market is vital for economies, and that its importance is still growing. Yet software not only represents an economic top seller and is a flourishing market of its own, it also drives innovation and productivity in other economic core markets. One of the most important application areas outside the classic ICT market is the pharmaceutical and medical product industries, in particular medical technology. According to estimates of the Software Alliance BSA for 2016, around USD 52 billion in the United States and EUR 12.7 billion in the European Union were invested in research and development (R&D) of software.^[3] The Swiss State Secretariat for Education estimates that Switzerland has spent approximately CHF 18.5 billion on research and development activities, suggesting that Switzerland is among the OECD’s top spenders on software R&D.^[4] The high investments indicate that the trend for digitalization and software is going to continue.

At the same time, we seem to be experiencing a global problem of intellectual property infringement in software. According to an international survey by the Software Alliance BSA, the use of unlicensed software is still widespread, accounting for up to 50 per cent or higher in the majority of all surveyed countries.^[5] This international association that advocates for the interests of the software industry warns that in order to reduce software IP (particularly copyright) infringement, governments should ensure that their legal frameworks provide effective measures to protect innovation and promote the means for redress and collaboration among stakeholders.^[6] Likewise, the Swiss State Secretariat for Education emphasizes that to secure a competitive advantage and adequate opportunities, companies aiming to make their inventions a success need to be able to protect their goods with strong intellectual property rights.^[7] This would call for favourable framework conditions which are in tune with current developments.^[8]

The crossroads between intellectual property law and software has repeatedly given rise to major controversies. Today, computer programs are legally protected mainly with copyright and patent law. In the field of copyright, we see difficulties because the institute for protection of authors is static and not geared to a dynamic constantly evolving product, such as software. The latest development methods, particularly, represent an entirely new challenge for copyright. At the same time, we may experience heated debates about the general eligibility of computer programs for patent law in both Europe – where patents for computer programs are largely precluded – and the United States – where excessive over-patenting and misuse of computer patents is claimed. There is great unrest. Many stakeholders and lawyers have criticized the system of computer protection in intellectual property law.^[9] A significant wave of criticism appeared in 1975, when the Association International pour la Protection de la Propriété Industrielle (AIPPI) proposed to draft a special legal system to protect software, including a sui generis mechanism.^[10] In 1978 the WIPO then analysed legal software protection and suggested a set of Model Provisions to better capture the intellectual property of computer programs, suggesting a specially designed statute for computer programs analogous to copyright.^[11] Despite various international efforts to respond to the demands and rectify the situation, in 1992 a report of the Office of Technology Assessment of the U.S. Congress (OTA) concluded that the new information system still challenged intellectual property law and that it would (still) entail numerous difficulties for current business practices and standing legal doctrines.^[12] After more than four decades, international dissatisfaction has improved little and software companies and lawyers are likewise still complaining about the uncontrollable growth in legal software protection.

In the last couple of years, this problem appears to have become even more acute. There remain numerous uncertainties about the applicability of copyright and patent law to (new) software development and commercialization methods. To contain this problem in practice, software companies are increasingly relying on alternative protection mechanisms, for example contractual obligations, greater secrecy and the use of technical protection measures. These private measures may, however, lead to unprofitable investments and increase transaction costs. In my view, it would thus be more effective to get to the root of the problem, namely copyright and patent law and find the solution here. But the question remains whether the problems raised by the software companies can be solved coherently in copyright and patent law. This leads to the next question, and the main question of my thesis, which is whether the principles in intellectual property law are still suitable for the protection of digital creations, such as computer programs. Do today’s regulations cover the needs of the industry or do we need any corrective measures?

In this context, Rossnagel coined the concept of jurisprudential technology design. Law has a claim on determining behaviour, and aims to act correctively on reality, influencing developments and participating in them.^[13] However, for the present thesis, I suggest a reverse approach, a technology-driven legislation. The aim is not the legal control of technology in the sense of creating opportunities and risks, but rather recognizing and translating factual realities in the work of software developers into law in order to reflect the actual conditions under which it has to become effective and offer practicable legal measures to protect software manufacturers. In the spirit of the quote by David Hockney mentioned on the first page of this dissertation, the aim is to gain a better understanding of the legal object to be protected. It will never be possible to make (IP) law specifically perfect for software engineering, but the goal should be to bring about an approximation to the practicalities of software development and commercialization in order to create a legal space for further creativity.

But before we fall into actionism to change IP software protection for the better, we first have to understand the subject matter so we can detect potential problems. Instead of unilaterally assessing technology from a purely legal perspective, this thesis aims to explore the perspective of the software developing and commercializing companies, because they are, firstly, the subject of this legislation and, secondly, the drivers of innovation and creativity in the field. Although software engineering is recognized as being of fundamental importance for our economy and for the development of future innovations, it is not yet clear what software engineers who are developing and commercializing software truly need from a legal perspective to effectively shelter their products with IP rights. No such data is available.^[14] This work will collect and analyse this missing socio-scientific qualitative data on the software companies’ needs in terms of software IP protection. It will then aim to determine to what extent the current legal system, relying mainly on copyright and patent law, is able to reflect these processes and where there is room for improvement. The intention is to make useful suggestions for the legal protection of software in copyright and patent law, or provide novel legal qualifications where these are missing.

Definition of the Research Problem

This thesis will examine the question of how software companies today develop and commercialize computer programs, in order to establish to what extent copyright and patent law is able to reflect these structures, and how – based on these findings – computer programs could consequently be adequately protected with legal measures.

This is a controversial subject that has been examined by lawyers on various occasions. However, no contemporary scientific data is available to support any claims. For this reason, my dissertation represents basic scientific research, in which by means of social-scientific methods utilizable data will be collected and evaluated in order to make verifiable statements for law. This evaluation will serve as a kind of location analysis, to further the legal understanding of software engineering. It will offer new points of view on existing legal doctrines as well as novel models to legally embed newer development and commercialization approaches into the legal protection of computer programs through copyright and patent law

From a socio-scientific perspective, the aim of my research is to work out how software engineering companies work in practice nowadays and what requirements arise from this for the legal description of the scope of protection in copyright and patent law. The goal is to elaborate and determine the sector-specific conditions of the software industry. My research therefore involves multiple steps. The first is to learn how software is developed and distributed to clients operationally which involves collecting information on procedural facts and then discovering the needs and wishes of the software developing companies. In this context, the needs are the basic expectations of the software companies in order to function accordingly. The wishes refer to how these companies want to satisfy their needs in a way that is compatible with the practices of the industry. This thesis will be documenting these needs and wishes. The results will then be systematically reintegrated into law in a comprehensive discussion of selected aspects in order to learn to what extent the current law is already able to capture the processes of software engineering and meet the industry’s needs and wishes with regard to legal software protection, and thus find gaps that need to be closed. I also want to find out at which stage in the development process to begin with legal protection in order to make intellectual property protection as attractive and efficient as possible. Throughout the analysis, the focus will be on the legal reflection of the procedural sequences, the different work products and the underlying needs and wishes of software engineering in order to map the scope of protection closer to the actual cond...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Table Of Contents
• Acknowledgements
• Index
• List of Abbreviations
• References
• List of Figures
• Abstract
• Chapter 1: Introduction
• Chapter 2: Methodology
• Chapter 3: Technical Foundation
• Chapter 4: Status Quo of Legal Software Protection
• Chapter 5: Findings of the Interview Series
• Chapter 6: Discussion of Selected Problems
• Chapter 7: Prospect and Closing
• Curriculum Vitae